For those who know copyright and understand how the law works this phrase has likely caused more headaches and facepalms than just about any other. Even most people who aren’t very knowledgeable about copyright know that copyright affixes to a work upon its creation and that it is automatic (at least in recent decades) with no symbol, notice or registration required.

Yet, the myth persists. The Cook’s Source and the Lara Jade case illustrate, a lot of people who really should know better simply don’t.

But before we dismiss these people as bing daft and foolish for not knowing the laws of their industry, we have to acknowledge that the confusion is actually somewhat understandable. With copyright “public domain” means something very different than it does to a layperson. That makes it so that, when one hears that they are free to copy and reuse anything that’s in the “public domain” they often have the wrong definition of the term and that, in turn, leads to trouble.

But is there a way we can prevent this confusion or at least lessen it? It would be difficult without throwing out a legal term with hundreds of years of significance, but there might be other ways to get around the issue.

Public Domain vs. Public Domain

In copyright, public domain simply means that the work lacks copyright protection. Whether it didn’t qualify for it, such as works created by the Federal government. However, to most lay people the “public domain merely means being “in the public sphere” or “made available to the public”.

With that second definition, it’s easy to see how others might conclude everything on the Web is in the “public domain” because it is in one of the two, just not the one that matters legally.

To be clear, “Public Domain” isn’t the only word with a different definition when used by laypeople. “Theft”, for example, is used much more broadly than the legal definition, which deals only with physical property and money. Also, many people use the word “Assault” when they really mean “Battery” as assault has become a catch-all for being attacked though that’s not the legal definition.

However, normally these distinctions don’t cause someone to get into trouble as the confusion is more semantic than anything. Here, the mistake leads to people believing that a wide swath of works are available for reuse when they are very much under copyright. In short, the layperson definition is almost the opposite of the legal one.

This, in turn, is how teens wind up on the cover of porn DVDs and magazines wind up pilfering articles.

WHile the problem is easy to understand, fixing it is a much larger challenge.

Fixing the Problem

First, the good news: In my experience, though I have no data to back this up, the problem seems with those much older than 40, which is definitely true in the case of the Lara Jade dispute though unconfirmed in the Cooks’ Source case.

This could be because the term “public domain” to mean “in the public” is somewhat archaic to younger people or it could simply be that those born later have had more exposure to the legal definition from an earlier age. While some still confuse the two at any age, it seems to be a bigger problem the higher the age goes.

Also, it is likely that those who have been born more recently have never lived in a copyright climate where things lapse into the (legal) public domain. Those born since 1978 have, with only a few exceptions, never had a work made in their lifetime lapse into the public domain as formality requirements were removed in the Copyright Act of 1976.

Despite all of this, the mistake does happen and explaining the difference between the two definitions of “Public Domain” can be a tedious, losing battle.

Even turning the conversation to ethics doesn’t always work. “Would you want your (attributed) article reprinted without permission or payment in a magazine?” is an ethical question that would likely split a room full of people. Some would be thrilled, others much less so. However, the law is pretty clear.

One approach is to just drop the term “Public Domain” from conversation and use “Copyright Protected” and “Not Copyright Protected” or some variation. However, that would require throwing out the term “Public Domain”, which can be traced back to the mid-19th century.

The problem isn’t the age of the term or how rarely it’s used, it’s the lack of familiarity with it and that, in turn, is caused by the lack of familiarity with copyright law at large. THat’s slowly changing thanks to the copyright issues the Web has raised, but the problem is far from over.

In the end though, copyright education is by far the best tool for defeating this confusion and it does seem to be having an impact, at least until the next Cooks Source case comes along

Bottom Line

One thing I’ve noticed over the six years I’ve run Plagiarism Today is that, for the most part, people are getting smarter about copyright. Though most online discussion about the issue are still littered with some who don’t understand the law, most understand at least the basics correctly and those who are more knowledgeable are listened to. This isn’t true every time, and much of it depends on the community you are looking at, but it seems to be an overall truth.

Hopefully this trend can continue and these types of mistakes will be less and less common. It may be wishful thinking, but I’m reasonably optimistic that if we can reach a widespread understanding of copyright, we can start working out how we want it to look and what we want it to do.

That is because, in 2007, Coton got a message through the art site deviantArt (dA) that someone had recognized her image on the cover of a DVD. Though only seventeen when, she had already been growing in notoriety in photography circles, in particular on dA, and it was one of her followers there who gave her the link.

It was that link that kicked off one of the most bizarre cases in recent copyright history and one of the more important ones for smaller content creators. With the case concluded, we’re going to take a look back at the lawsuit, how it started, how it was battled and what the outcome means.

As you’ll see, the case was a long, winding and at times emotional road but one that may have direct implications for smaller content creators all over the globe.

Strange and Angry Beginnings

As Coton began to investigate the DVD on her own, she quickly learned that it was a pornographic DVD and, specifically, a re-release of the 1982 film Body Magic (link SFW).

After contacting Hustler, who was selling the DVD on their site, she found out that the video had been released by a Houston-area company named TVX Films. TVX and its owner, Robert Burge, specialized in wholesale rereleases of “classic erotica”. As part of this, they re-release old films with new covers and had chosen Coton’s photo for their release of Body Magic, likely because the original cover had a photo of a woman in a top-hat.

When Lara Jade contacted Burge, what she received was a nasty reply, written in all caps and littered with spelling and punctuation errors. One famous passage read (capitalization his):

“I’M SURE BY THE END OF THE MONTH YOUR FACE WILL BE HISTORY. WE HAVE STOPPED SELLING THE DVD UNTIL COVER IS REPLACED. WE HAVE FURTHER CHECKED OUT YOUR NAME AND ITS NOT LIKE IT’S A HOUSE WHOLE NAME. ACTUALLY, REMOVING YOUR IMAGE WILL HELP IMPROVE THE SELL OF THE DVD….. SO FAR IT BOMBED”

Burge also claimed that the company that created the cover did their research and that the image was in the public domain. He accused Coton of “scheming” to set him and that, on the question of compensation that Coton was “Silly”.

Despite this, Burge did begin the process of recalling the DVDs and removing Coton’s image from the cover. Coton, not satisfied with Burge’s response, began contacting solicitors in her area. However, it proved to be largely a futile exercise.

“Since I was from the UK and the company was in Texas, the solicitors wanted tens of thousands of pounds to take the case. My parents couldn’t do it, I don’t come from a wealthy family,” Coton said.

It was then that Coton took her case to the Web, posting on dA about the incident. The case not only became the talk of the dA community, but quickly spread to other sites, including several mainstream media outlets.

“I didn’t expect the reaction to happen that way,” Coton said, adding that others seemed to react to the case very strongly

However, for a while it didn’t seem as if anything would come of it beyond some negative press for Burge and TVX and some additional media attention for Coton as there was still no hope for filing a lawsuit with no attorneys willing to take the case.

An Offer to Help

According to Richard Harrison, it was on a “gossipy” blog that he first heard about Coton’s plight. A Tampa-area attorney, Harrison he reached out to Coton and agreed to take on the case at no cost her, accepting only a contingency fee, saying that it was something that meant a lot to him and his firm, Allen Dell, to take on.

However, the case almost never got off the ground. Harrison ordered several copies of the DVD only to find that the cover had already been changed. With no evidence, there was little that could be done in pushing the case forward. The DVDs sat, unopened in his office for some time before he decided to take one out. There, on the DVD itself, he found Coton’s image.

With this new discovery, on July 31, approximately two months after he first reached out to Coton, he filed suit in Tampa District Court.

The initial complaint (PDF) listed Burge and TVX as defendants and also included two other media companies involved in the distribution of the DVD, both of which eventually settled out of court and had their cases voluntarily dismissed. Burge initially protested the lawsuit on jurisdictional grounds though, in April 2008, his motion to dismiss was stricken (PDF) after his attorney failed to follow procedure and be admitted to the court. Eventually, in October of the same year, the two parties agreed to voluntarily consent to the jurisdiction of the court (PDF).

But it was the delays and procedural problems that defined much of the case. According to Harrison, at least two attorneys attempted to represent Burge and TVX though both were not able to continue on procedural grounds. Burge represented himself for most of the case (pro se) but since corporations can not represent themselves and TVX failed to find a representative, it was found in default (PDF) in October 2008. Burge himself, largely due to his lack of timely and proper filings, was found in default in February 2009.

However, this didn’t stop Burge from making filings in the case. He would often file long, rambling petitions filled with inaccuracies about copyright law. Many of his motions included pages of “evidence” that, often times, just included different copies of the image he’d found on the Web. One of his motions, filed at the end of the trial, included a tirade against the VA healthcare system (PDF) and openly insulted the court for not allowing him the time he felt he needed. This, in turn, would force Harrison to respond to the motions and usually have them stricken from evidence.

Despite the odd filings from Burge, the defaults set up the trial earlier this year, which was on the issue of damages alone. Though Burge had not attended any hearings in some time, there were rumors that Burge might come into Florida for the trial.

“It was very scary,” Coton said, “I was very worried he was going to show up,” saying that her one face-to-face meeting with Burge during depositions was far less than cordial and Burge seemed to her to be a very “angry” man.

However, the worry was for nothing as no one represented Burge or TVX. Coton and Harrison were able to present their evidence to the judge without opposition, thus bringing an end to the trial.

In the end, the judge awarded Coton nearly $130,000 in damages, including $100,000 for defamation and $25,000 for misappropriation of image. The rest was for the copyright infringement claims.

It brought an end to the now three-year old case, but certainly hasn’t ended the questions and debates the case raised.

Far From “Over”

Though the decision is certainly an important win for Coton and for photographers everywhere, the case is far from over. With judgment in hand, there is still the issue of collecting on it, a matter that could prove to be very difficult.

Given that Burge’s native Texas is what Harrison calls “a debter’s heaven” it remains to be seen what, if any, assets Burge has that can be collected on. Though Harrison has pledged to attempt to follow Burge “to his last breath” in an attempt to collect for his client, he admits to being skeptical that he will see most of the judgment.

“I would be shocked if we get another nickel out of this case,” Harrison said.

In addition to the question of collection, according to Harrison he and his firm have donated “well north of $100,000″ in fees to the case. If this case were not pro bono taken on a contingency fee basis, even if Harrison were able to secure complete collection of the judgment, most of it would be eaten up by fees and Coton herself would only see very little, if anything, from it.

This would be especially true if it were not for the fact that the photo in question was a self-portrait. With $125,000 of the nearly $130,000 in damages being for the defamation and misappropriation of image claims, less than 4% of the damages came from the copyright claim. The reason for this is that Coton, as a UK photographer, had not registered her works with the U.S. Copyright Office and, though she could file suit, she could not seek statutory damages and attorney’s fees.

In short, without Harrison and his firm’s free legal help willingness to take the case on a contingency basis at a loss, this case most likely would not have been practical to pursue. But even with his help, without it being a self-portrait, there is almost no way that this case would have seen the kind of damages that it did generate.

That being said, there is little chance of an appeal from Burge. Since he is in default, the odds of an appeal being successful are slim to none and the likelihood of him filing such an appeal are equally small. So, other than collection, it seems likely that this case is over.

Effects From The Case

With the case done both Coton and Harrison have been looking back over the, at times, very wild ride.

For Coton, it has been something of a mixed bag. Though the media attention has helped her with her career in some ways, the fact her image was on a pornographic DVD has hurt her.

“I’ve been scared of clients finding out about this,” Coton said, “It isn’t good for any big clients to be associated with porn.”

One job in particular, a project that would have the camera company Canon sponsoring her has been put on hold pending the resolution of the case.

The biggest problem Coton had been that, since the image was used on the cover of a pornographic DVD that many, incorrectly and without seeing the image, assumed it was a nude photo. This, according to her, has hurt her reputation as both a photographer and a model.

Still, Harrison and Coton both are very happy with the outcome of the case. According to Harrison, “Everything our client wanted to accomplish, we accomplished, we protected her image, we protected her reputation and we protected her copyright.”

He also said that the damages awarded were “fair” saying that, as is typical for such cases, they had presented multiple legal theories on damages were not allowed to double dip. Also, he knew that much of the punitive damages were a “stretch” given that, at the time of the act, Burge wasn’t likely doing anything with malice.

So, even though they had requested over $400,000 in damages, the $130,000 awarded seemed, to him, to be “about right”.

Coton is cautiously optimistic about collection and hoping that the money, if it does appear, can be used to help finance her move to the United States, specifically New York.

Bottom Line

If anything, this case serves as a warning. First and foremost, to anyone who would seek to use Google Images or the Web at large as a tool to find stock photos. Most of the content on the Web is copyrighted and using something without clearing all the needed rights is opening the door to a wide array of legal troubles.

It is also a warning content creators though, that your work is valuable and it can be used (legally or illegally) for commercial purposes. When Coton took the photo in 2004, she was just having fun with her camera and learning her hobby, she never envisioned it being used commercially, let alone on the cover of a porn DVD.

This makes it vital that, before you put works online or timely thereafter that you register your works with the U.S. Copyright Office, especially if you want to prevent unauthorized commercial use. Not only do you need such a filing to even start a lawsuit, without a timely filing you can’t seek statutory damages and attorney’s fees, making it almost impossible to justify a lawsuit.

While the Lara Jade Coton case is a major win and one I hope makes other infringers pause before lifting the works of others, especially for commercial use, it also highlights the responsibilities of content creators to protect their work.

On that note, I want to thank both Lara Jade Coton and Richard Harrison for sticking through this fight and seeing it through to the end. They have done content creators everywhere a major service by sticking up for smaller creators against very high odds.

Update/Correction: Richard Harrison emailed me to correct the issue that his firm did NOT work pro bono but, instead, worked on a contingency fee basis. This means they are paid a portion of damages collected. However, that is rare in these types of cases as, usually, there is no way to recoup the full costs of the case via this means, meaning it was taken at a steep loss. I have updated the text of the article above to reflect this change.

In a judgement dated yesterday, September 16, the judge in the Lara Jade Coton case has awarded the photographer $130,000 in damages after a self-portrait of her was used as the cover art and the disc art for a pornographic DVD.

The case began in 2007 when the defendants in the case, Robert Burge and his company Televised Visual X-Ography used Coton’s photograph when they distributed a pornographic DVD entitled “Body Magic”. Coton, who was 14 at the time the photo was taken, was seen wearing a formal dress and a top hat while posing in front of a window.

Coton, who was outraged at the use of her image, immediately demanded that Burge stop use of the image. Burge said that the error was with his designer but said that he had recalled the DVDs and was changing the cover art. However, according to Coton’s attorney, Richard Harrison, they had not changed the art on the disc itself and were continuing to sell copies of it with Coton’s image.

Coton sued Burge and TVX citing a wide range of torts including copyright infringement, misappropriation of image, defamation and infliction of emotional distress.

The case had dragged on for the past three years, with Burge and TVX being found in default, and it eventually proceeded to bench trial on damages alone in July.

Coton had asked the court for some $434,000 in damage totalled but the judge awarded $129,173.20 in the case, saying that some of the claims were impermissible double recovery and denied punitive damages citing that Burge’s actions lacked malice.

This is a breaking story and I will have a more thorough evaluation of the judgment later as well as a more thorough write-up on the case itself. In the meantime, feel free to review the order granting final judgment for yourself.

Congratulations to Lara Jade and Richard Harrison for a hard-fought and very important win.

Later, in July, she filed a lawsuit against the company behind the DVD, TVX Films, with the aid of a Tampa lawyer, Richard Harrison.

There has been little movement on the lawsuit. According to Harrison, TVX Films has filed a motion to dismiss the lawsuit on jurisdictional grounds but not much else has happened.

However, a forum posting earlier this month on Model Mayhem has pointed to another controversy with TVX films and, possibly at least, another set of legal troubles for the company.

A Potential Pattern

In the forum, a poster named Manuel Rego highlighted the cover of TVX Films’ movie Sunny (NSFW), which appears to have used a photograph entitled “Flowers” (nsfw) by a Russian photographer known as “Roge”.

According to Rego. he was able to get in contact with Roge and said in another posting that the photographer had no idea that the photo was being used and that he was upset about it.

No word about whether or not the photographer involved is considering action against TVX films for the use of the photo.

The forum conversation also discusses, and in fact started with, another image used on the cover of the TVX film “StarBabe” that appears to come from pinup photographer Octavio Arizala (noisy site and nsfw), also known as Winkytiki.

The cover photo on the Starbabe DVD seems to be a doctored version of a photo he shot of a woman holding a science fiction pistol. The photo can be seen on his Web site in various places though I could not find a direct link to the photo.

According to Harrison, who sent me the link to the Model Mayhem forum, “If you look at the three cases (Lara Jade and these other two) you will find that all three had their work on Deviant Art website and all three
photographers reside outside the U.S. Seems like a deliberate pattern, and not sheer coincidence, to me.”

Harrison goes on to say that he does not represent any of the other photographers involved and can not comment on what action they might be taking.

I sent an email to Arizala for comment but he did not respond before the posting of this article. I will update this piece if he does.

It is unclear what, if anything, will come of these allegations. However, photographers and models are being encouraged to take a look at the TVX site, linked in the original forum post, and see if your work has been used by them. I would add that is especially true if you are an international photographer that has used deviantArt and takes photos that might be of interest for this type of use.

Clearly though, there is much about this case that is unresolved and I will continue to bring you more updates as they come to light.

Earlier today she, through her attorney Richard Harrison, filed suit today in a Tampa courtroom against TVX Films, its owner, Robert Burge, and two retailers who sold the DVD. The 11 count complaint sites copyright infringement, misappropriation of image, false light and emotional distress among other counts.

The claim does not specify any damages but is seeking both punitive and actual damages. Since the work was not registered with the U.S. Copyright Office, they are not seeking statutory damages or attorney fees at this time.

According to the complaint, even after promising to cease use of the image, TVX films continued to use the image on the DVD itself, despite having removed it from the cover, a practice that was ongoing as recently as June.

As of this time, none of the defendants have responded to the suit.

Harrison, in a phone call earlier today, said that he contacted Coton after reading about her plight on a gossip site. After discovering that no other attorney had agreed to help her, he offered to step in and take the case.

This will be a case to follow and one that all rightsholders on the Web will be affected by, I will be bringing you updates as I get them.

Read the Complaint (PDF)